United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge
the Court is a motion by Ward Edwards, Inc.-referred to in
this order as “the plaintiff”-to initiate
proceedings supplementary under Federal Rule of Civil
Procedure 69 and section 56.29 of the Florida Statutes,
to implead 40 people and entities who were not parties to the
underlying federal action into the proceedings supplementary,
and to freeze assets of one or more of the non-parties.
See Docs. 78 (notice), 78-1 (motion), 78-2-78-26
(exhibits), 92 (reply).
but not all of those sought-to-be impleaded have responded in
opposition to the motion. See Docs. 81 (response by
25 people and entities-referred to in this order as the
“primary respondents”), 86 (supplement to the
response), 89 (response by St. Mark's Pond Property,
LLC-referred to in this order as “SMPP”), 94
(sur-reply by the primary respondents). Unclear from the
record is whether all of the 40 people or entities
sought-to-be impleaded received notice of the motion.
background of the matter is in the Court's order dated
September 18, 2018, and, in the interest of judicial economy,
is not fully repeated here. See Doc. 76.
it to say that, twelve years ago, in 2007, the plaintiff
obtained a consent judgment for $340, 361.63 plus
post-judgment interest against The Devlin Group, Inc.-referred to
in this order as “the defendant”-in the United
States District Court for the Southern District of Georgia in
Ward Edwards, Inc. v. The Devlin Group, Inc.,
2:07-cv-66-LGW-RSB (S.D. Ga.), based on claims for unpaid
professional services. See Doc. 1.
later, the plaintiff, through previous counsel, filed in this
Court a “Certification of Judgment for Registration in
Another District, ” and began discovery in aid of
execution. See Ward Edwards, Inc. v. The Devlin Group,
Inc., No. 3:07-mc-53-J-33JRK (M.D. Fla.). The last entry
on that docket is an order from more than a decade ago,
entered in 2008, denying a motion to quash or modify a
subpoena duces tecum and directing non-party Gatehouse
Capital Corporation to comply with the subpoena. See
Doc. 44 in No. 3:07-mc-53.
years later, in 2011, involuntary petitions for bankruptcy
under chapter 7 were commenced against the defendant and
another entity, Devlin Group Properties, LLC. See In re
The Devlin Group, Inc., No. 3:11-bk-1498-JAF (M.D. Fla.
Bankr.); In re Devlin Group Properties, LLC, No.
3:11-bk-1499-JAF (M.D. Fla. Bankr.). In the bankruptcy case
involving the defendant, the plaintiff was among dozens of
people and entities listed by Wallace R. Devlin, Jr. (the
defendant's “Director”) in a schedule of
creditors holding unsecured nonpriority claims. See
Doc. 71 in 3:11-bk-1498. In 2013, the bankruptcy cases ended
with orders dismissing the cases. See Doc. 78 in
3:11-bk-1498; Doc. 76 in 3:11-bk-1499.
years later, in late 2016 or early 2017, the plaintiff,
through new counsel, sent subpoenas to 174 entities and 52
people on behalf of the United States District Court for the
Southern District of Georgia, subsequently withdrew the
subpoenas as improper, and separately filed in four divisions
of this Court, including here, a “Certificate of
Judgment for Registration in Another District.” See
Ward Edwards, Inc. v. Devlin Group, Inc.,
3:16-mc-60-J-32PDB (the current matter); Ward Edwards,
Inc. v. Devlin Group, Inc., 8:16-mc-146-T-35AAS;
Ward Edwards, Inc. v. Devlin Group, Inc.,
6:17-mc-9-Orl-40KRS; Ward Edwards, Inc. v. Devlin Group,
Inc., 2:16-mc-30-FtM-UA-CM; see also Docs. 20,
20-1 in 2:07-cv-66 (S.D. Ga.).
proceeded only here. Following disputes and attempts at
resolutions, in 2018, the Court denied the plaintiff's
motion to compel discovery and granted in part a motion by 23
entities to quash subpoenas issued by the plaintiff. Doc. 76.
The Court ordered those entities to respond to the
plaintiff's subpoenas, as limited, and directed the
parties to meet and confer about a deposition of Devlin. Doc.
76 at 24. He had agreed to sit not only for one deposition
but also for a follow-up deposition after discovery of any
evidence as a result of any testimony in the original
deposition. Doc. 81 at 2.
entities responded to the subpoenas by explaining they had
reviewed their respective records and possessed no responsive
documents. Doc. 78-1 at 11-12 (citing Doc. 78-24). The
plaintiff neither filed additional motions to compel nor
deposed Devlin, and its counsel currently represents it still
is “without a scintilla of knowledge as to the ultimate
disposition of” most of the defendant's assets.
Doc. 78-1 at 12.
earlier this year, the plaintiff filed the current motion
(titled, “Plaintiff's Motion for Proceedings
Supplementary and Impleader of Third Parties and Request for
Preliminary Injunction”) together with more than 450
pages of exhibits. Docs. 78, 78-1-78-26.
apparently on internet research, the plaintiff contends the
defendant, Devlin, and Devlin's father created a
“web of entities.” Doc. 78-1 at 3. In the motion,
the plaintiff seeks an order authorizing the commencement of
proceedings supplementary under Rule 69 and section 56.29.
Doc. 78-1 at 27. In the motion, the plaintiff seeks impleader
of Devlin, four other people, and 35 entities because they
assertedly “may be in possession of [the
defendant's] assets.” Doc. 78-1 at 1-2, 27- 28; Doc. 92
at 2 (quoted). In the motion, the plaintiff seeks permission
to conduct “comprehensive” discovery into the
businesses and financial interests of the 40 people and
entities and to require them to “appear before this
Court for an evidentiary hearing concerning the issue of
fraudulent transfer and alter ego and satisfaction of the
Consent Judgment.” Doc. 78-1 at 28. And in the motion,
although not in the “wherefore” clause, the
plaintiff seeks “a freeze order preventing the further
transfer of assets out of any account held by [the defendant]
and alter egos and a freeze order prohibiting [Devlin] from
transferring assets and any of equity in the impleaded
parties.” Doc. 78-1 at 26 (internal capitalization
primary respondents contend the plaintiff has caused them to
“incur substantial legal costs to limit the scope of
the overbroad discovery requests and to respond to multiple
court filings” by the plaintiff. Doc. 81 at 2. They
complain that instead of proceeding with available discovery,
such as Devlin's deposition, the plaintiff
“aggressively” uses previously criticized tactics
and “sweeping improper filings” under an already
rejected legal theory. Doc. 81 at 2-3. They contend the
plaintiff's provision of hundreds of pages of documents
to 40 people and entities is “reprehensible, ”
adding that the “use of this Court to make a document
dump has further injured [them] and increased the cost of
responding to these irresponsible and vexatious
actions” of the plaintiff and its counsel. Doc. 81 at
3. They observe that the plaintiff “again makes
allegations without any factual or legal support.” Doc.
81 at 4. They argue the plaintiff's
“unsubstantiated and ersatz assumptions should not be
condoned nor permitted.” Doc. 81 at 5. They contend:
These current costs and pleadings could have been avoided if
[the plaintiff] and its counsel had merely taken the
under-oath deposition long before the case was closed in
December 2018. Instead, [the plaintiff] again filed redundant
pleadings that further demeans legitimate interests by
asserting false claims. The filings demonstrate that leaving
[the plaintiff] unrestrained, will continue to subvert the
court process. The continued filings seem intended to force
[the primary respondents] to pay moneys owed by a dissolved
entity. [The plaintiff's] actions have been taken
regardless of the costs to [the primary respondents] or the
Court. This continued harassment and improper use of the
judicial system is dilatory and vexatious.
Doc. 81 at 5.
primary respondents observe the purpose of impleader is to
summon into court non-parties who possess “specific
identifiable property” and provide them due process.
Doc. 81 at 5. They continue that the motion is a
“callous and intentional misuse” of impleader
insofar as the plaintiff seeks to use it to obtain damages
against non-parties under a piercing-the-corporate-veil
theory. Doc. 81 at 5. They argue the plaintiff fails to
comply with section 56.29 because the plaintiff has not filed
the affidavit required by section 56.29(1) and has not
described the property it contends should be applied to
satisfy the judgment as required by section 56.29(2). They
argue the plaintiff fails to satisfy its burden of showing
preliminary injunctive relief is warranted. Doc. 81 at 7.
Although [the plaintiff's counsel] did not contact [the
primary respondents'] counsel pursuant to Rule 3.01 (g)
the local rules of the Middle District, the undersigned
counsel certifies that he contacted [the plaintiff's]
counsel last week by phone and by letter to discuss
withdrawal of the Motion and request counsel to contact the
service list persons or entities. [The primary respondents]
requested [the plaintiff's] counsel to request the
service list entities or person destroy all documents sent to